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HomeMy WebLinkAbout2013-13 Approving a Timber Ridge Pre-Development AgreementRESOLUTION NO. 13 Series of 2013 A RESOLUTION APPROVING A TIMBER RIDGE PRE - DEVELOPMENT AGREEMENT; AND SETTING FORTH DETAILS IN REGARD THERETO WHEREAS, the Town of Vail (the "Town "), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the "Charter "); WHEREAS, the members of the Town Council of the Town (the "Council ") have been duly elected and qualified; WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property (the "Property "); WHEREAS, the Town desires to redevelop the Property consistent with the Housing zone district; and WHEREAS, to accomplish the redevelopment of the Property the Town desires to enter into a Pre - Development Agreement (the "Agreement ") with its selected developer in the form attached hereto as Exhibit A. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council hereby approves the Agreement and authorizes the Town Manager to enter into the Agreement on behalf of the Town in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 15th day of October, 2013. EST: Tammy gel, Acting Tow Resolution No. 13, Series 2013 G� Andrew aly Town Mayor PRE- DEVELOPMENT AGREEMENT THIS PRE- DEVELOPMENT AGREEMENT (the "Agreement ") is made this day of , 2013 (the "Effective Date "), by and between the Town of Vail, Colorado, a Colorado home rule municipality, (the "Town ") and , a ( "Developer "), (individually a "Party" and collectively the "Parties "). WHEREAS, the Town is the owner of certain real property generally described as the eastern half of the Timber Ridge property and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, the Parties desire to redevelop the Property consistent with the Housing zone district; WHEREAS, to accomplish the redevelopment of the Property, the Town would retain fee ownership of the Property, but would provide Developer with a long -term ground lease of the Property; and WHEREAS, the Parties wish to establish terms of the development of the Property. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: 1. Exclusive Option. During the term of this Agreement and subject to all of its terms, Developer shall have the exclusive option to redevelop the Property for employee housing as provided in this Agreement. 2. Parameters of Development. The redevelopment of the Property (the "Development ") shall be subject to the execution of a mutually acceptable development improvement agreement ( "DIA "). The Development shall meet the following parameters, which shall be further detailed and refined in the DIA: a. The Development shall at all times be subject to the Vail Town Code. b. The Town shall provide the Developer with a long -term ground lease of the Property, with a term of thirty-five (35) years (the "Ground Lease "). The rent shall be one dollar ($1.00) per year, and there shall be no security deposit. The form of the Ground Lease must be mutually acceptable to the Town and Developer. All improvements constructed on the Property shall be owned by Developer; provided that, Developer may grant to the Town or its housing authority an interest in Developer, which percentage interest shall be the minimum percentage allowable under Colorado law to obtain property tax exemption on the Property and all improvements. C. Upon termination of the Ground Lease, Developer shall surrender to the Town, free and clear of all debt and other encumbrances, all improvements, inclusions, fixtures, equipment and other appurtenances on the Property in good condition and repair. 10/17/2013 I I VWS- STORAGE I DESKTOPS$ I TNAGEL I DESKTOP I PRE- DIA -3. DOC During the term of the Ground Lease, the Town shall have a right to inspect the Property on an annual basis to review the condition of the improvements. d. The Development shall include at least one hundred eight (108) dwelling units. At least seventy percent (70 %) of the dwelling units in the Development shall be employee housing units , as the term "employee" is defined in Section 12 -2 -2 of the Vail Town Code. e. Except as otherwise expressly provided herein, Developer shall be solely responsible for all improvements on the property, including construction, maintenance and repairs. Developer shall be solely responsible for all expenses of operating the Property, including insurance and utility costs. f. The Ground Lease shall be for the Property "as is," though the Town has no actual knowledge of the presence of any hazardous materials or other adverse environmental conditions on the Property. g. Developer may convey equity interests in its limited liability company entity without the Town's consent, provided that any assignment of this Agreement or any rights or obligations hereunder shall be subject to Section 13 hereof. h. The Property shall be subject to a deed restriction (the "Deed Restriction ") requiring at least seventy percent (70 %) of the dwelling units in the Development to be employee housing units capable of housing employees, as the term "employee" is defined in Section 12 -2 -2 of the Vail Town Code. The form of such Deed Restriction must be mutually acceptable to the Town and Developer. i. Developer shall be solely responsible to procure financing for the Development. Developer may encumber its leasehold interest in the Ground Lease in connection with the initial financing for the Development and any refinancing during the term of the Ground Lease. If a lender (whether the initial lender or a lender in connection with any refinancing) requires the Town to subordinate its fee interest in the Property to the lender's mortgage, the Town will do so provided that: (a) at all times the Deed Restriction shall be first and prior to the mortgage; and (b) the Town shall have a first and prior right to cure any deficiency to protect its fee interest in the Property. If Developer wishes to use federal funds for the Development, it shall be Developer's sole responsibility to procure such funds. j. Developer shall conduct at least one pre - application conference with the Town Council prior to submitting its initial application for the Development. Such pre - application conference is an opportunity for Developer to hear comments from the Town Council concerning the Development, but the Town shall not be bound by any such comments, and any reliance on such comments shall be at Developer's own risk. k. Developer shall submit to the Town a development application for the Development on or before November 29, 2013. The development application must be 2 1011712013 11 VWS- STORAGE I DESKTOPS$ I TNAGEL I DESKTOP I PRE- DIA -3. DOC consented to and signed by the Town, because the Town will remain the fee owner of the Property. 1. At no time shall the Development eliminate access to or the ability to safely occupy or operate the Timber Ridge housing units currently existing on the real property adjacent to the Property, as more particularly described on Exhibit B, attached hereto and incorporated herein by this reference (the "Adjacent Property"), and the Ground Lease shall provide the Town with unrestricted access to the Adjacent Property at all times. M. Developer shall be responsible for construction of any public improvements necessary for the Development, including streets, sidewalks and utilities. n. Income from the Development shall be distributed in the following order of priority: (1) To pay all Development costs and operating and maintenance expenses, including without limitation property management fees and the Development Fee described in Section 3 hereof. (2) To pay principal and interest on Development debt. (3) To fund any reserves required by any lender related to the Development (each a "Lender Reserve "). (4) To pay the required return on investment to any equity investors in the Development. (5) To fund a project reserve (the "Project Reserve "), which shall be used for any shortfalls in subsections (1) -(4) above. Upon termination of the Ground Lease, if any amounts remain in the Project Reserve or any Lender Reserve, such amounts shall be remitted to the Town. (6) In the event all Lender Reserves are fully funded in the amount required by the lender, and the amount of the Project Reserve is at least $150,000, any amount in excess of $150,000 shall be distributed fifty percent (50 %) to the Town and fifty percent (50 %) to the Developer. 3. Development Fee. Developer shall be entitled to a development fee (the "Development Fee ") in connection with its development of the Property. The amount of the Development Fee shall not exceed the maximum development fee allowed by the Colorado Housing and Finance Authority under its qualified allocation plan adopted on October 25, 2012 and approved by the governor on January 16, 2013. The Development Fee may be paid from any Project sources including, without limitation, debt proceeds, equity proceeds, and income from the Development. 3 10/17/1013 I I VWS- STORAGE I DESKTOPS$ I TNAGEG I DESKTOP I PRE- DIA -3. DOC 4. Town Obligations. a. The Town shall be responsible for all costs associated with any necessary rockfall mitigation. b. The Town shall work with Developer and the Colorado Department of Transportation ( "CDOT ") to resolve roadway issues related to the Development; provided that Developer shall be responsible for the cost of any additional turn lanes on the Frontage Road necessitated by the Development. C. The Town shall grant to Developer, for the benefit of the Property, easements across the Adjacent Property that are mutually determined to be necessary for the Development; including without limitation utility, drainage, and access easements; provided, however, that no such easements will have a material adverse effect on the operation of the Adjacent Property. d. The Town shall cause any existing liens and encumbrances on the Property to be released in order to facilitate Developer's financing. e. The Town shall refund one hundred percent (100 %) of all amounts paid by the Developer for the Town's construction and building materials use tax applicable to the Property. Developer shall be responsible for all demolition and building permit fees for permits issued by the Town in connection with the Development. In addition, the Town shall impose typical and customary plan review fees for review of all plans for the Property, and Developer shall be responsible for payment of such fees. f. The Town shall use its best efforts to help Developer obtain an exemption from property taxes for the Development from all taxing authorities. To the extent the Property is not tax- exempt, the Town shall refund one hundred percent (100 %) of any property taxes, net of the Eagle County Treasurer's fee, collected by the Town on the Property or improvements thereon. 5. Due Diligence. During the term of this Agreement, Developer shall conduct all due diligence necessary to determine whether the Property is suitable for the Development, at Developer's sole cost. 6. Term and Termination. This Agreement shall commence upon the Effective Date and terminate on August 15, 2014 (unless such date is extended by mutual agreement of the Parties); provided that Developer may terminate this Agreement earlier than such date upon thirty (30) days written notice to the Town. 7. Costs. Except as otherwise set forth herein, each Party shall be responsible for its own costs under this Agreement. 8. Modification. This Agreement may only be modified by subsequent written agreement of the Parties. 4 10/17/2013 I I VWS- STORAGE I DESKTOPS$ I TNAGEL I DESKTOP I PRE- DIA -3. DOC 9. Integration. This Agreement and any attached exhibits constitute the entire agreement between Developer and the Town, superseding all prior oral or written communications. 10. Binding Effect. ffect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs; successors and assigns. 11. Severability. If any provision of this Agreement is determined to be void by a court of competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other provisions shall remain in full force and effect. 12. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 13. Assignment. There shall be no transfer or assignment of any of the rights or obligations of Developer under this Agreement without the prior written approval of the Town. 14. Third Parties. There are no intended third -party beneficiaries to this Agreement. 15. Contingency; No Debt. Pursuant to Article X, § 20 of the Colorado Constitution, any financial obligations of the Town under this Agreement are specifically contingent upon annual appropriation of funds sufficient to perform such obligations. This Agreement shall never constitute a debt or obligation of the Town within any statutory or constitutional provision. 16. No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture in any private entity or activity which participates in this Agreement, and the Town shall never be liable or responsible for any debt or obligation of any participant in this Agreement. WHEREFORE, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: Lorelei Donaldson, Town Clerk APPROVED AS TO FORM: Matthew Mire, Town Attorney TOWN OF VAIL, COLORADO Stan Zemler, Town Manager 5 /0//7/20/3 I I VWS- STORAGE I DESKTOPS$ I TNAGEL I DESKTOP I PRE- D /A -3. DOC By: Name: Its: STATE OF COLORADO ) ss. COUNTY OF ) DEVELOPER The foregoing instrument was subscribed, sworn to, and acknowledged before me this day of , 2013, by as the of My commission expires: (S E A L) Notary Public 6 /0/!7/20/3 I I VWS- STORAGE I DESKTOPS$ I TNAGEL I DESKTOP I PRE- DIA -3. DOC